Citation Nr: 1320183 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 04-38 263 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety disorder, and depressive disorder. 2. Entitlement to service connection for metastatic squamous cell cancer of the neck, throat, tongue, and shoulder muscles, to include on the basis of exposure to herbicides and/or radiation or as secondary to service-connected squamous cell cancer of the lung. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to March 1966, including service in Vietnam. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2003 rating decision in which the RO denied service connection for PTSD and for metastatic squamous cell cancer affecting the neck, throat, tongue, and shoulder, as well as denied an increased rating for a low back disability. The Veteran filed a notice of disagreement (NOD) in January 2004 and the RO issued a statement of the case (SOC) in August 2004. The Veteran filed a substantive appeal (via a VA Form 21-4138, Statement in Support of Claim), in October 2004. The RO continued to deny service connection for PTSD in a November 2004 supplemental SOC (SSOC). Subsequently, in a November 2004 letter, the Veteran withdrew from appeal his claim for an increased rating for a low back disability; thus, that issue is not before the Board. In that letter, the Veteran also requested a hearing before a Veterans Law Judge (VLJ) at the RO. The RO continued to deny the claims for service connection for PTSD and for cancer in August 2005 and December 2006 SSOCs. In a January 2007 letter, the RO informed the Veteran that his hearing was scheduled for January 2007; however, in correspondence received the same month, the Veteran cancelled his hearing request. In June 2007, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claims, as reflected in a January 2012 SSC, and returned the matters on appeal to the Board for further consideration. In October 2012, the Board determined that additional development was needed with respect to the Veteran's claims and, again, remanded his claims to the RO via the AMC. In that decision, the Board noted that, while the Veteran claimed service connection for PTSD, his claim was expanded to include all psychiatric disabilities reflected in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran's PTSD claim has been re-characterized as encompassing the multiple diagnoses, to include PTSD (as reflected on the title page). In May 2013, the undersigned Veterans Law Judge granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board's disposition of the psychiatric disability claim is set forth below . The remaining claims on appeal are addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. On July 11, 2003, the Veteran filed an informal claim seeking service connection for PTSD. 2. In an April 2013 rating decision, VA granted service connection for an anxiety disorder/depressive disorder, effective July 11, 2003. 3. There remains no case or controversy pending before the Board with respect to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder. CONCLUSION OF LAW Because the April 2013 award of service connection for anxiety disorder/depressive disorder represents a full grant of the benefits sought on appeal with respect to the Veteran's claim for service connection for an acquired psychiatric disorder, there remains no case or controversy with respect to that claim over which the Board may exercise jurisdiction. 38 U.S.C.A. §§ 511, 5107, 7104 (West 2002); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 19.4. The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. 38 C.F.R. § 20.101(d). On July 11, 2003, the Veteran filed an informal claim seeking service connection for PTSD, among other disabilities. In support of his claim, the Veteran asserted that he experiences symptoms of PTSD, including panic attacks, anxiety, and a sleep disorder, which he believes are a result of his service in Vietnam. See July 2003 statement from Veteran. Initially, the RO denied the Veteran's PTSD claim on the basis that he did not provide sufficient information to verify his claimed stressors. See December 2003 rating decision. However, as noted, in October 2012, the Board expanded the Veteran's PTSD claim to include all psychiatric disorders reflected in the record, including specifically PTSD, depression, and an anxiety disorder manifested by panic attacks. The Board remanded the Veteran's claim in order to obtain a medical examination and opinion regarding all currently diagnosed psychiatric disabilities. The Veteran was afforded a VA examination in November 2012 wherein he was diagnosed with generalized anxiety disorder, which the examiner opined was at least as likely as not related to service. The November 2012 VA examiner specifically found the Veteran did not meet the clinical criteria for PTSD. Accordingly, in an April 2013 rating decision, the RO granted service connection for anxiety disorder/depressive disorder (claimed as PTSD), effective from July 11, 2003, the date of the Veteran's claim for PTSD. In this regard, the RO informed the Veteran that the grant of service connection represented a fully favorable and final determination of the issue on appeal. Under these circumstances, the Board finds that the Veteran's claim of service connection for an acquired psychiatric disorder has been granted by the decision of a lower adjudicative body that fully resolved the Veteran's appeal as to his PTSD claim. In making this determination, the Board notes that, while the Veteran was diagnosed with PTSD in August 2003, it appears that this condition has now resolved, as the Veteran's symptoms of anxiety, depression, and sleep disturbance have been attributed to a generalized anxiety disorder, for which entitlement to service connection has been established. See VA examination reports dated August 2003 and November 2012. In addition, the record reflects that the Veteran was informed that the grant of service connection for an anxiety/depressive disorder fully resolved his appeal, and the Veteran has not in any way disagreed with the RO's determination. Hence, there is no longer any case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. § 19.4. In the absence of any justiciable question remaining, the appeal as to the claim for service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder must be dismissed. ORDER The appeal as to the claim for service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder is dismissed. REMAND The Veteran is seeking service connection for squamous cell carcinoma affecting his neck, throat, tongue, and shoulder muscles. He has asserted that his cancer disability was incurred as a result of his exposure to herbicides and/or radiation during service. In March 2012, the Veteran filed a claim seeking service connection for lung cancer as due to herbicide exposure. In a May 2012 rating decision, the RO granted service connection for squamous cell carcinoma affecting the lung, effective March 2012. While this decision did not represent a full grant of the benefit sought with respect to the claimed neck, throat, and shoulder cancer, the Veteran has stated that his service-connected lung cancer started only a few inches from his neck cancer. See VA Form 21-4138 dated December 2012. In this regard, the evidence shows that the Veteran's lung cancer is the primary cancer, while the evidence consistently describes his left neck and tongue cancer as metastatic. See April 2012 VA opinion; March 2011 VA examination report; June 2003 Neck CT report. Based on the foregoing, the Board finds that the evidence of record raises a question as to whether the Veteran's claimed neck, throat, and shoulder cancer disabilities are secondary to his now service-connected lung cancer disability. The Board is required to consider all issues raised either by the claimant or by the evidence of record. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008). When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the decision in Allen, which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. Therefore, although it will result in an additional delay in adjudicating the Veteran's claim, the Board finds that another remand is in order to provide full consideration of all potential theories of entitlement. On remand, the RO should conduct all appropriate evidentiary development, to include obtaining a medical opinion regarding whether his neck, throat, tongue, and shoulder cancer is secondary to his service-connected lung cancer. In this regard, the evidence shows the Veteran was afforded a VA examination in conjunction with his claimed neck, throat, tongue, and shoulder cancer disabilities in March 2011; however, because service connection for lung cancer had not yet been established, the examiner did not address whether any claimed disability is secondary to his now service-connected lung cancer, and there is otherwise no medical opinion that addresses this question. Therefore, on remand, the March 2011 VA examiner should be requested to provide an addendum to his previous report. The RO should only request another examination of the Veteran if the prior examiner is unavailable, or another examination is deemed warranted. Also, on remand, all updated VA treatment records should be obtained and associated with the claims file. The record reflects that the Veteran has been receiving treatment at the Southern Arizona VA Healthcare System (HCS). The claims file, inclusive of the paperless claims file maintained on Virtual VA, currently includes treatment records dated to March 2013. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Southern Arizona VA Healthcare System (HCS) any outstanding, pertinent records of evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c), as regards requests for records from Federal facilities. Additionally, as the theory of secondary service connection has recently been raised, the Veteran should be sent a new letter notifying him of the information and evidence necessary to substantiate a claim for service connection on a secondary basis to comply with the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); In its letter, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal, and the letter should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. Obtain from the Southern Arizona VA Healthcare System all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since March 2013. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter request that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. In the letter, inform the Veteran of the information and evidence needed to substantiate a secondary service connection claim, and the type of evidence that is his ultimate responsibility to submit Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, obtain an addendum opinion from the VA examiner who conducted the March 2011 VA examination. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner and he is requested to review all pertinent records associated with the claims file. The examiner should clearly identify all current cancer disabilities affecting the Veteran's neck, throat, tongue, and shoulder. Then, with respect to each such diagnosed cancer disability, the examiner should provide opinion, consistent with sound medical judgment, as to the following: (a) Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability was caused by the Veteran's service-connected lung cancer? (b) Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is aggravated (worsened beyond natural progression) by the Veteran's service-connected lung cancer? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinions, the examiner should consider and discuss all pertinent medical evidence and lay assertions. If the May 2011 examiner is not available, or examination of the Veteran is deemed necessary, arrange for him to undergo examination, by an appropriate physician at a VA facility, to obtain opinions in response to the queries posed above. In such event, the entire claims file, to include complete copy of the REMAND, along with copies of any relevant records on Virtual VA (if the examiner does not have access) must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5.. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority.. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs